Merchandise invoiced as "chalk slags," consisting of raw chalk and It amall proportion of mud, mixed, dried. and kiln burn"d, and afterwards crushed into lumps and used in the. manufacture of Portland cement by grinding to a tine powder, which in itself makes a fair low order of cement. is assessable for a duty of 20 per cent. ad valorem under act Oong. l\'larch 3, 1883, (HeY!'B .Arrangement, cl. 44,) "as cement, Roman, Portland, and all others."

At Law. Action by the Anglo-'American Portland Cement Company against Anthony F. Seeberger, collector of customs, to recover excess duty levied upon certain merchandise imported by them. Shuman &: Defrees, for plaintlff. W. G. Ewing, U. S. Dist. Atty., and G. H. Harris, Asst. U. S. Atty., for defendant. BLODGETT, J. Plaintiffs imported a quantity of what was designated in the invoice as "chalk slags," which the collector assessed for duty at the rate of 20 per cent. ad valorem, under clause 44 of HEyl'S Arrangement of the act of Yarch 3, 1883, "as cement, Roman, Portland, and all others, 20per centum ad valorem." Plaintiffs insisted that said merchandise was dutiable under clause 95, Heyl, as "non-dutiable crude minerals, but which have been advanced in value or condition by refining or grinding, or by other process of manufacture, not specially enumerated or provided for in this act, ten per centum ad valorem;" paid the duties so assessed under protest; appealed to the secretary of the treasury, by whom the action of the collector was affirmed; and brought this suit in apt time to recover the excessive duties claimed to be paid. The merchandise in question consists of raw chalk from the Dover cliffs in England, and mud taken from the bottom of the Medway river in England, the mud being the smaller proportion of the two ingredients; but the proof does not show how much smaller. These ingredients are thoroughly mixed, then dried and bumed in kilns, and afterwards broken -or crushed into lumps of about the size of the ordinary chestnut coal used in this country. This commodity is used by the plaintiffs in this country in the manufacture of what they call Portland cement, which is done by reducing the merchandise in question to a very fine powder, and then thoroughly mixing it with a certain percentage of carbonate of lime. The proof also shows that, in the condition imported, the merchandise in question, by being pulverized, makes a fair low order of cement, like the Portland cement, but it does not set as quickly and is not as hard as the good quality of Portland cement. I do not see how this commodity can be classed as "a non-dutiable crude mineral," and made dutiable under clause 95, as insisted upon by the plaintiffs. Neither of its constituent

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vol. 39.

within the description of "minerals," but are strictly earths or parts earthy materials. The clause invoked seems to me to have been intended to cover ores of various minerals, which may be found profitable to import into this country, and whieh may have been purified of their rocky or earthy su'Jstances in order to save expense in transportation. It is further quite apparent from the proof in this case that, even in the condition imported, the commodity in question is a cement within the meaning of clause 44 of Heyl, which includes, not only Portland and Roman cement, b1.1t all other cements. It is, as the proof sho\'I's, a cement as imported, only requiring to be ground to make it fit for use, but probably is improved and made better by the addition of the carbonate of lime. The provision of the law under which the collector acted, however, does not seem to have reference to any special quality of cement i but all cements are made dutiable at the same rate, whether of the higher order of Portland and Roman cement, or of the more common and cheaper sorts. I am, therefore, of opinion that the collector was justified in the classification and assessment of duty in this case, and that the plaintiffs should not recover.

UNITED STATES V. LEIGH.

(Circuit Court, D. Massachusetts.

September 11, 1889\)

"

CUSTOMS DUTIES-ApPRAISEMENT-RoYAJJTY FEES.

Where machinery subject to letters patent in the United States and Great Britain, has been manufactured and sold to the importer in England, the royalty fees forits use paid by the purchaser in this country, which formed no part of the price in England, are not a part of its dutiable value under section 2906, Rev. St. U. S., which requires the collector to cause the market or wholesale price of the article, in the country from which it is exported, to be appraised for the purpose of assessing the duty.

At Law. Action to recover additional duties on machinery. T. H. Talbot, Asst. U. S. Dist. Atty. J. P. Tucker, for defendant.
COLT, J. This is an action brought by the United States for additional duties upon certain machinery imported into the port of Boston by the defendant. Parts of the machinery, at the time of importation, were the subject of letters patent issued by the governments of Great Britain and the United States, the owners being the same in both countries. The government contends that the royalty fee paid by the purchaser in the United States to the defendant for the right to use the machinery in question is a part of the dutiable value of the machinery. It is admitted that the defendant, at the time of making the contract of sale to his purchaser in this country, agreed to furnish the machines at a round price, which included the royalty fee for the right to use the machinery. The